Weise v. Barker
| Decision Date | 08 February 1884 |
| Citation | 2 P. 919,7 Colo. 178 |
| Court | Colorado Supreme Court |
| Parties | WEISE and others v. BARKER and others. |
In an action of ejectment one tenant in common may recover possession of the entire tract as against all persons but his co-tenants.
Actual possession is prima facie evidence of title; and entering upon premises in the actual possession of another for the purpose of 'locating,' amounts only to a trespass, and cannot form the basis of any title.
It is immaterial to the defendants whether this action be brought in the name of the several co-owners of the claim, or in the names of a portion thereof; and an amendment of the complaint so as to include all the co-owners, they claiming under the same title, cannot prejudice the defendants.
The record does not show that the plaintiffs afterwards joined were made parties without their consent, and the presumption is that, being proper parties, they all consented to become plaintiffs, otherwise those not consenting would have been joined as defendants.
The certificate having been correctly made out, a mistake of the recorder in recording the same cannot avail the defendants herein; the plaintiffs are not responsible for it.
Appeal from district court of Park county.
George, Maxwell & Phelps, for appellants.
W P. Wade, Geo. M. Dunn, and A. Danford, for appellees.
The principal errors assigned are, that the district court erred in allowing the amended complaint to be filed and in making Benbow and Hussey parties to the action. The action was originally instituted by Barker and Wade as plaintiffs, alleging that they were entitled to one undivided one-half, or each to one undivided one-fourth of the Tanner Boy lode, and that the defendants had wrongfully entered upon said claim and taken possession thereof, to the exclusion of the plaintiffs and their grantors, etc. Afterwards, leave was granted the plaintiffs, after service of notice upon the defendants, to file an amended complaint in said cause, making the said Benbow and Hussey parties plaintiffs. The amended complaint alleges, among other things, 'that plaintiffs are and were, at the institution of this suit, owners and entitled to the possession of said claim in the following proportions, to-wit, each to an undivided one-fourth; and that they claim the right to occupy and possess said premises by right of pre-emption and by virtue of full compliance with the local laws and rules of miners in said mining district, the laws of the United States, and of said state of Colorado, and by actual prior possession as a lode mining claim. Plaintiffs in error assume that Benbow and Hussey were made parties to the amended complaint without their consent.
We have searched the record in vain for evidence to sustain this assumption. The averments of the amended complaint are to the effect that Benbow and Hussey are tenants in common with the original plaintiffs, Barker and Wade, and that each of said four plaintiffs is the owner of an undivided one-fourth of the property sued for. All were proper parties to the complaint, and the presumption obtains that all consented to become parties plaintiff, as otherwise those not consenting would have been joined as defendants. Civil Code, §§ 11, 13.
The amended complaint having been filed by leave of the court, after notice to the defendants, and the defendants having suffered a default to be entered against them, are in no position to complain of the judgment. On behalf of the appellants it is insisted that the amendment changed the subject-matter of the action. This view cannot be sustained. True, the original complaint only claimed for the plaintiffs Barker and Wade an undivided half of the Tanner Boy lode; but as against the appellants they were entitled to recover the entire lode, and the original complaint might have been amended to claim the whole. The defendants did not claim to be co-tenants of Barker and Wade, but were claiming the entire lode by a wholly different and adverse title. The law is that in ejectment one tenant in common may recover possession of the entire tract as against all persons but his co-tenants. Mahoney v. Van Winkle, 21 Colo. 583; ...
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...constitute location and possession amounts only to a trespass, and cannot form the basis for the acquisition of a title.”’ Weese v. Barker, 7 Colo. 178, 2 Pac. 921. We think it clear that under the allegations of the bill the appellant could obtain the relief actually prayed for in an actio......
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